CONSTITUTIONAL GOVRNANCE- II

Amendment as laws

Amendments of fundamental right

Submitted To Ms. Poonam Kumari By Nilesh Shreedhar Semester III BA. (H) LLB. (H)

National University Of Study and Research in Law Ranchi

ACKNOWLEDGEMENT
I am highly obliged to my subject teacher Ms. Poonam Kumari and Mr. Debashish Paddar who has guided me throughout this project and instilled in me the basic concepts and formats related to this formal brief of a renowned case. I am also thankful to my fellow colleagues who have helped me throughout and without whose cooperation and support, submission of this project would have been next to impossible. Above all, I am highly indebted to my parents who kept on motivating and cheering me to work for this project with complete dedication. It would be extremely unfair if our respected Vice Chancellor is not mentioned. He is the pillar of our institution which is yet to flourish. I am also thankful to him for his inspirational lectures and further deliberations.

Nilesh Shreedhar Semester III BA. (H)LLB. (H) NUSRL, Ranchi

DISCLAIMER

This brief has been prepared by the student studying in NUSRL for academic purposes only. The views expressed in the brief are personal to the intern and do not reflect the views of any of personality or the judges from elsewhere. The brief which is presented before you has not been copied from any website and a lot of effort has been made to ensure that this formal written presentation is devoid of various discrepancies.

Nilesh Shreedhar Place: Ranchi Semester III NUSRL, Ranchi Date: 28th Oct, 2011

TABLE OF CONTENTS
Amending provisions of Indian constitution Necessity of amending provisions of the constitution (INTRODUCTION) THE JOURNEY BEGINS : JUDICAL INTERPRETATION 1. Shankri Prasad v. union of India 2. Sajjan singh v. State of Rajasthan case 3. 24th amendment 4. I.C. Golaknath v. state of Punjab 5. Keshvananda Bharti v. state of Kerela 6. 42nd amendment 7. Minerva mills ltd. V. union of India CONCLUSION

Amending provisions of Indian constitution: Article 368 in The Constitution Of India 1949 368. Power of Parliament to amend the Constitution and procedure therefor (1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article (2) An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill: Provided that if such amendment seeks to make any change in (a) Article 54, Article 55, Article 73, Article 162 or Article 241, or (b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or (c) any of the Lists in the Seventh Schedule, or (d) the representation of States in Parliament, or (e) the provisions of this article, the amendment shall also require to be ratified by the Legislature of not less than one half of the States by resolution to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent (3) Nothing in Article 13 shall apply to any amendment made under this article (4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of Section 55 of the Constitution (Forty second Amendment) Act, 1976 shall be called in question in any court on any ground (5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article PART XXI TEMPORARY, TRANSITIONAL AND SPECIAL PROVISIONS

Necessity of amending provisions of the constitution: Provisions for the amendment of the constitution are made with the view to overcome the difficulties which may encounter in future working of the constitution. No generation has monopoly of wisdom nor has it a right to place fetters on the future generations to mould the machinery of government according to their requirements. If no provisions were made for the amendment of the constitution, the people would have recourse to extra constitutional method like revolution to change the constitution. It has been the nature of the amending process itself in federation which has led political scientists to classify federal constitution as rigid. A federal constitution is generally rigid in character as the procedure of amendment is unduly complicated. 1 Though, the framers of Indian constitution were keen to avoid excessive rigidity. They were anxious to have a growing document in a country that was likely to grow and adapt itself with the changing need and circumstances of a growing people. In the words of our first prime minister, J.L. Nehru while we want this constitution be as solid and permanent as we can make it, there is no permanence in the constitution .There should be certain flexibility .if you make anything rigid and permanent you stop the nations growth of a living vital , organic people...in any event , we could make this constitution so rigid that it cannot be adopted to changing conditions . When the world is in period of transition what we may do today may not be wholly applicable tomorrow. The framers of the Indian constitution were also aware of that fact that if the constitution was so flexible it would be like playing cards of the ruling party so they adopted a middle course. It is neither too rigid to admit necessary amendments, nor flexible for undesirable changes. India got independence after a long struggle in which numerous patriots sacrificed their life. They knew the real value of the freedom so they framed a constitution in which every person is equal and. They wanted to build a welfare nation where the social, economical, political rights of the general person recognize. Hence, they adopted this middle course.

Wehare: Federal government

THE JOURNEY BEGINS : JUDICAL INTERPRETATION Now the question that has been raised from 1951 onwards was about the scope of amending power of the constitution contained in article 368. The basic question was whether the fundamental rights were subject to amendment or not. The answer of this question was tried by the apex court in a number of cases. The journey of judicial interpretation goes as follows: Shankri Prasad v. union of India Sajjan singh v. State of Rajasthan case I.C. Golaknath v. state of Punjab Keshvananda Bharti v. state of Kerela Indira Nehru Gandhi v. Raj Narain Minerva mills ltd. V. union of India Waman rao, a.k. roy etc.

Shankri Prasad v. union of India :2 In this case validity of first constitutional amendment, 1951, which inserted inter alia, art 31A and art 31B of the constitution, was challenged. The amendment was challenged on the ground that it abridges the rights conferred by part III and hence was void. It was argued that the state in article 12 and the law in art 13(2), therefore must include constitutional amendment. The Supreme Court however rejected the above argument and held that power to amend constitution including the fundamental rights is contained in Article 368 and that word law in article 13(3) includes only an ordinary law made in exercise of the legislative powers and does not include a constitutional amendment which is made in exercise of constitutional power. Thus, an amendment is valid even if abridges a fundamental right. The adaptation of article 368 is really an adapta- tion for the removal of difficulties. The adaptation is not of a permanent character. This shows that the adaptation is not an amendment and even if it is an amendment, it is so by way of adaptation. Article 13 (2) prohibits "laws" incon- sistent with fundamental rights. It cannot affect article 368 since the word "law" in article 13 (2) refers to ordi- nary legislative enactments and not constitution making.3 Justice Patanjali sastri explained it in following words, the terms of article 368 are perfectly general and empower Parliament to amend the Constitution, without any exception whatever.
2

AIR 1951 SC 458

Had it been intended to save the fundamental rights from the operation of that provision, it would have been perfectly easy to make that intention clear by adding a proviso to that effect. Here two articles each of which is widely phrased, but conflicts in its operation with the other. Harmonious construction requires that one should be read as controlled and qualified by the other. Having regard to the considerations adverted to above, the context of article 13 "law" must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to the Constitution made in exercise of constituent power, with the result that article 13(2) does not affect amendments made under article 368. It only remains to deal with the objections particularly directed against the newly inserted articles 31A and 3lB.

Sajjan singh v. State of Rajasthan case4 For the next 13 years following Shankari Prasad, the question of amendability of the fundamental Rights remained dormant. The same question was raised again in 1964 in Sajjan Singh V Rajasthan, when the validity of the Constitution (17th Amendment) Act, 1964, was called in question. This amendment again adversely affected the right to property. By this amendment, a number of statues affecting property rights were placed in the ninth Schedule and were thus immunised from court review. In the instant case, the court was called upon to decide the following question; 1. Whether the amendment of the constitution in so far as it purported to take away or to abridged the fundamental right was within the prohibition of Art. 13(2); and 2. Whether Art. 31A and 31B (as amended by the XVII amendment) sought to make changes to Arts. 132, 136 and 226, or in any of the lists in the VII schedule of the constitution, so that the conditions prescribed in the proviso to Art. 368 had to be satisfied? One of the argument was that the amendment in question reduced the area of judicial review (as under ninth schedule), many statues had been immunised from attack before a court); it thus, affected Article 226 and, therefore, could be made only by following the procedure prescribed in Art. 368 for amending the entrenched provision, that is, the concurrence of at least half of the States ought to have been secured for the amendment to be validly effectuated. The conclusion of the supreme court in Shankari Pd. As regards the relation between Art. 13 and 368 was reiterated by the majority. It felt no hesitation in holding that the power of amending the Constitution conferred on Parliament under Art. 368 could be exercised over

AIR1965 SC 845

each and every provision of the Constitution. The majority refused to accept the argument that Fundamental Rights were eternal, inviolate and beyond the reach of Art. 368.

Golak Nath Case5 This case was very important because Golaknath v. State of Punjab , the validity of the Constitution (17th Amendment) Act, 1964 was again challenged, which inserted certain State Acts in Ninth Schedule. The Supreme Court in its landmark decision overruled the decision given in the Shankari Prasads and Sajjan Singhs case. It held that the Parliament had no power from the date of this decision to amend Part III of the Constitution so as to take away or abridge the Fundamental rights. Eleven judges participated in this decision with the ratio being 6 : 5. The judges were worried about the numerous amendments made to abridge the fundamental rights since 1950. It apprehended that if the courts were to hold that the Parliament had power to take away fundamental rights, a time might come when these rights are completely eroded. The reasoning given by Subba Rao CJ. Was as follows: i) The chief justice argued that power to amend the constitution was a sovereign power and the said power was supreme to the legislative power and that it did not permit any implied limitations and that amendments made in exercise of that power involve political questions and that therefore they were outside of judicial review. The power of the parliament to amend the constitution is derived from art.245 read with entry 97 of list I of the constitution and not from article 368. It only lays down merely procedure for amending the constitution i.e. a legislative process. An amendment is law within the meaning of art 13(2) and therefore if it is violated any of the fundamental right it may be declared as void. The word law in article 13(2) included every kind of law, statutory as well as constitutional law and hence a constitutional amendment which contravened art 13 (2) will be declared void.

ii)

iii)

The chief justice said that the fundamental right are assigned transcendental place under our constitution and therefore they are kept beyond the reach of parliament . The chief justice applied the doctrine of perspective overruling and held that this decision will have only prospective operation and therefore the 1st ,4th ,17th amendment will continue to be valid. The minority however held that the word law in article 13(2) refers to only ordinary laws and not a constitutional amendment and hence shankari Prasad and sajjan singh cases are rightly decided. According to them art. 368 discusses not only procedure of amending the constitution but also with the power to amend constitution.

AIR 1971 SC 1643

24th amendment1971 In order to remove the difficulties created by the decisions of the supreme court in Golaknaths case parliament enacted the 24th amendment act. This amendment has made the following amendments: i) ii) iii) it added a new clause (4) to article 13 which provides that nothing in this article shall apply to any amendment of constitution made under article368. it substituted a new marginal heading to article 368 in place of the old heading. Now, the proviso said power of parliament to amend constitution and procedure thereof. it inserted a new subsection(1) in article 368 which provides that Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article. it added a 368(3) which provides nothing in this article 13 shall apply to any amendments under this article.

iv)

Thus, in whole the 24th amendment not only restored the power of parliament to amend the constitution but also extended its scope by adding words to amend by way of addition or variation or repeal any provision in this constitution in accordance with the procedure laid down in this article. Keshvananda Bharti Case6 This 24th amendment was challenged in Kesavananda Bharti case (1973) before 13 judges. The majority by 7:6 overruled the 24th amendment. The validity of Clause 4 of Art. 13 was upheld. In the result the fundamental rights could be amended under Art.368 and the validity cannot be questioned on the ground that the act invades or encroaches fundamental rights. His Holiness Kesavananda Bharati v. The State of Kerala and Others is a landmark decision of the Supreme Court of India. It is the basis for the power of the Indian judiciary to review, and strike down, amendments to the Constitution of India passed by the Indian parliament which conflict with or seek to alter the constitution's 'basic structure'. The judgment also defined the extent to which Parliament could restrict the right to property, in pursuit of land reform and the redistribution of large landholdings to cultivators, overruling previous decisions that suggested that the right to property could not be restricted. The case was a culmination of a series of cases relating to limitations to the power to amend the Indian constitution.
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AIR 1973 SC 1461

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The court by majority overruled the Golaknath case which denied parliament the power to amend fundamental rights of citizens. The majority held that article 368 , even before the 24th amendment contained the procedure as well as power to amend the constitution. The 24th amendment merely made explicit what was implicit in unamended constitution. The 24 th amendment is just declaratory in nature and nowhere enlarges the scope of article 368. It clarifies the true legal position as it was before. One more major proposition that was laid down in keshvananda case contravening Golaknaths case is the earlier made all fundamental right non-amendable and the later made this proposition more flexible. Not all fundamental rights are en bloc are now to be regarded as non-amendable but only such of them as may be characterized as constituting the basic features of the constitution.

The major issues regarding the amenability of constitution before the largest bench of court were 1) Whether the twenty-fourth amendment was unconstitutional or not.

2) Whether Article 13(2) is applicable on Constituional amendment as well, i.e. whether the term law in Article 13 includes Constitutional amendment or not. 3) Whether Fundamental Rights can be amended or not.

4) Whether Article 368 as it originally was conferred power on the Parliament to amend the Constituion. On the question whether the Fundamental Rights can at all be amended, the bench was divided into 7:6. The minority was of the view that the Parliament has all power to amend the Constitution including the basic structure. The majority decided that the Parliament can amend any provision of the Constitution but the basic structure should not be destroyed, damaged or abrogated. The court affirmed that the power of the Parliament to amend the Constitution is not unlimited and the judicial review can be applied on it. The majority overruled Golaknath judgment as in the opinion of the bench, apart from fundamental rights, there are several other features and provisions in the Constitution, which are more important and which should not be allowed to be violated. Golaknath made the Fundamental rights non-amendable and this was quite harsh and will put an end to the flexibility of the Constitution. Thus the fundamental rights were allowed to be amended provided it does not abrogate the basic structure of the Constitution and it was held that all fundamental rights are not included in the basic structure, specially right to property is not as such. It was held that the twenty fourth amendment made that explicit what was implicit in Article 368 earlier.

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But at the same time there were a numbers of criticisms for the majority view opinion given in this case. Some of the major arguments are revealed as follows: The decision- against the intention of the members of the Constituent Assembly:-

According to Mr. N.A. Palkhivala, the counsel from the side of the petitioner, there are enough evidence from the Constituent Assembly debates that the members of the Constituent Assembly were against the view that the Fundamental Rights can be amended. Thus the Supreme Court erred in deciding that Fundamental Rights can be amended.

On April 29, 1947, an interim report on Fundamental Rights was placed before the Constituent Assembly and there was a debate on that interim report. On April 29, 1947, Shri K. Santhanam moved an amendment in Clause 2 which corresponded to the present Article 13 as follows: "Shri K. Santhanam: Sir, I gave notice of an amendment but I will move it in a somewhat modified form in terms of a suggestion made by Sardar Patel. I move that in Clause 2 for the words 'nor shall the Union or any unit make any law taking away or abridging any such right', the following be substituted: 'Nor shall any such right be taken away or abridged except by an amendment of the Constitution.' The only reason is that if the clause stands as it is then even by an amendment of the Constitution we shall not be able to change any of these rights if found unsatisfactory or inconvenient. In some Constitutions they have provided that some parts of the Constitution may be changed by future constitutional amendments and other parts may not be changed. In order to avoid any such doubts I have moved this amendment and I hope it will be accepted. The Hon'ble Sardar Vallabhbhai Patel: Sir, I accept the amendment". In the draft prepared by the Constitutional Advisor in October 1947, Clause 9(2) corresponding to the present Article 13(2) was so worded as to exclude constitutional amendments from being rendered void under that article: "(2) Nothing in this Constitution shall be taken to empower the State to make any law which curtails or takes away or which has the effect of curtailing or taking away any of the rights conferred by Chapter II of this Part except by way of amendment of this Constitution under Section 232 and any law made in contravention of this sub-section shall, to the extent of the contravention, be void. But the Drafting Committee omitted the words excluding constitutional amendments, and in the draft Constitution as settled by the Drafting Committee, constitutional amendments were not excluded from the bar of Clause 8(2) corresponding to the present Article 13(2): "(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void;" 7 This shows that the members of the Constituent Assembly did not agree with the view that the fundamental right can be amended or abridged by the way of the Constitutional Amendment. Jawahar Lal Nehru wanted to make the Fundamental Rights as the permanent feature of the Indian Constitution and B.R. Ambedkar wanted to make it beyond the reach of Article 368.
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volume III, CAD

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Political scientists view

According to Natural Law Jurists, human beings while entering into the contract with the rulers, transferred the right to rule them but kept certain rights with themselves. Those rights are natural rights which the state, king or the government has no power to violate. These inalienable natural rights were permitted to be violated by the court. The court permitted the Parliament to take away the fundamental freedoms which the people have themselves reserved for themselves by the way of Constitutional amendments. The Supreme court has been made the custodian of these rights, then also erred in its decision by holding that the Fundamental Rights can be violated. The Court perhaps did not realize that it allowed the violation of several basic human rights guaranteed under Universal Declaration of Human Rights, 1948 to which India was a signatory. Thus the Court can be said to have allowed grave injustice to be done at the hands of the Parliament in the form of Constitutional amendments.

Ultimately the bench not giving unlimited power to the parliament did the most significant judicial invention of all the times. They proposed the doctrine of basic structure The majority held that there are inherent limitations on the amending power of the Parliament and Article 368 does not confer power so as to destroy the Basic Structure of the Constitution. The Theory of basic structure very effectively proved to be a limitation on the amending power of the Parliament. The Basic Structure doctrine applies only to the Constitutionality of amendments and not to ordinary Acts of Parliament, which must conform to the entirety of the Constitution and not just its basic structure. Interestingly the court had The court has neither defined the basic structure nor has it given any test to determine the basic structure; it has just given certain instances of the basic structure and has always provided that the list is not exhaustive. It has remained on the whims and fancies of the court to determine what basic structure is and what is not. On the ground of the basic structure, every amendment is to be challenged in the court of law. This made basic structure a vague doctrine but still most effective tool of judicial decisions and protector of the rule of law. Though by this judgment, all the fundamental rights could not be made immune from amendment but certainly the basic structure was given a protective shield and it was held that Parliament's amending power is not absolute, the amending power is subject to inherent and implied limitations which do not permit Parliament to destroy any of the essential features of the Constitution and thereby damage the basic structure of the Constitution. The judgment has been a salutary check on Parliament's tendency to ride roughshod over fundamental rights and its insatiable appetite to encroach upon fundamental right.

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42nd Amendment Act, 1976 and Article 368: 42nd Amendment Act, 1976 was passed by the Parliament soon after. Amendment added clause 4 and clause 5 to Article 368. Article 368(4) provided that no Constitutional Amendment shall be called in any court on any ground. Article 368(5) provided that there shall be no limitation whatsoever on the constituent power of the Parliament.

Minerva Mills V. Union Of India 8

Supreme Court struck down clauses (4) and (5) of Article 368 inserted by the 42nd amendment. Justification for the deletion of the said clauses was based on the destruction of Basic Structure. The Court was satisfied that 368 (4) and (5) clearly destroyed the an essential feature as it gave the Parliament absolute power to amend Constitution. Limitation on the amending power of the Parliament is a part of the Basic Structure explained in Kesavanandas case. Again in cases like INDIRA NEHRU GANDHI v. RAJ NARAIN, WAMAN RAO AND SAMAPTH RAO, A.K. RAO case the same proposition was affirmed every time.

AIR 1980 SC 1789

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CONCLUSION But the journey of the conflicts between legislature and judiciary took a halt after this case. The law of land took shape in the form of basic structure doctrine given in keshvananda case. The judiciary took a midway and balanced between the amendiblity of the constitution. The 44th amendment finally revoked one of the fundamental right but it nowhere created too much hue and cry because keshvananda hold the basic string of amending fundamental rights. In short now we can say that the constitution of India is supreme not the Parliament of the constitution.Thsi is in accordance to the framers of the constitution. Parliament cannot have unlimited amending power but with the changing time and test of society constitution should be adaptable and an organic document. This doctrine not only contemplated Indian judiciary but of many other countries too. It establishs in true meaning :

SATYAMEV JAYATE

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Bibliography

LIST OF STATUTES
1. THE CONSTITUTION OF INDIA.

LIST OF BOOKS

1. Austin Granville, The Indian Constitution Cornerstone of a Nation,Sixteenth Edition 2011,Oxford University Press. 2. Bakshi, P.M., The Constitution of India, Eleventh Edition, Universal Law Publishing Company. 3.Basu ,D.D., Introduction to the Constitution of India, Twentieth Edition Reprint 2010, Lexis Nexis Butterworths Wadhwa, Nagpur. 4.Basu,D.D.,Shorter Constitution of India, Fourteenth Edition Reprint 2011, Lexis Nexis Butterworths Wadhwa, Nagpur. 5. Cheryl, S., Constitutional Arrangements of the Federal Systems, Twelfth Edition, Oxford University Press. 6. Jain, M.P., Indian Constitutional Law, Sixth Edition Reprint 2011, Lexis Nexis Butterworths Wadhwa, Nagpur. 7.Niraja Gopal Jayal and Pratap Bhanu Mehta ,The Oxford Companion to politics in India, First Edition 2010,Oxford University Press. 8. Samaraditya Pal and Justice Ruma Pal., Indian Constitutional Law, Sixth Edition, Lexis Nexis Butterworths Wadhwa, Nagpur. 9. Seervai.H.M., Constitutional Law of India, Fourth Edition, Universal Law Publishing Company.

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10. Shukla, V.N., Constitution of India, Eleventh Edition, Eastern Book Company.

LIST OF WEBSITES

www.manupatra.com www.supremecourtofindia.nic.in www.realestatedefined.com www.juris.ac.in www.legislation.gov.uk www.swarb.co.uk. www.lexixnexis.in

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